[Federal Register Volume 81, Number 89 (Monday, May 9, 2016)]
[Proposed Rules]
[Pages 28037-28040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10753]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 1000, 1003, 1005, 1006, and 1007
[Docket No. FR 5861-P-01]
RIN 2577-AC96
Equal Access to Housing in HUD's Native American and Native
Hawaiian Programs--Regardless of Sexual Orientation or Gender Identity
AGENCY: Office of the Assistant Secretary for Public and Indian
Housing, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would revise regulations for HUD's Native
American and Native Hawaiian programs to incorporate existing rules
that require HUD programs to be open to all eligible individuals and
families regardless of sexual orientation, gender identity, or marital
status. Since HUD promulgated the ``Equal Access to Housing in HUD
Programs Regardless of Sexual Orientation or Gender Identity'' final
rule in February, 2012, HUD has required that HUD-assisted and HUD-
insured housing be made available in accordance with program
eligibility requirements and without regard to sexual orientation,
gender identity, or marital status, and has generally prohibited
inquiries into sexual orientation or gender identity. In applying these
non-discrimination requirements to HUD's Native American and Native
Hawaiian programs, this proposed rule would further the Federal goal of
providing decent housing and a suitable living environment for all.
DATES: Comments due: July 8, 2016.
ADDRESSES: Interested persons are invited to submit comments regarding
this proposed rule to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW., Room 10276, Washington, DC 20410-0500. Communications must refer
to the above docket number and title. There are two methods for
submitting public comments. All submissions must refer to the above
docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by
mail to the Regulations Division, Office of General Counsel, Department
of Housing and Urban Development, 451 7th Street SW., Room 10276,
Washington, DC 20410-0500.
2. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
www.regulations.gov. HUD strongly encourages commenters to submit
comments electronically. Electronic submission of comments allows the
commenter maximum time to prepare and submit a comment, ensures timely
receipt by HUD, and enables HUD to make them immediately available to
the public. Comments submitted electronically through the
www.regulations.gov Web site can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Note: To receive consideration as public comments, comments must
be submitted through one of the two methods specified above. Again,
all submissions must refer to the docket number and title of the
rule.
No Facsimile Comments. Facsimile (fax) comments are not acceptable.
Public Inspection of Public Comments. All properly submitted
comments and communications submitted to HUD will be available for
public inspection and copying between 8 a.m. and 5 p.m., weekdays, at
the above address. Due to security measures at the HUD Headquarters
building, an advance appointment to review the public comments must be
scheduled by calling the Regulations Division at 202-708-3055 (this is
not a toll-free number). Individuals with speech or hearing impairments
may access this number via TTY by calling the Federal Relay Service,
toll free, at 800-877-8339. Copies of all comments submitted are
available for inspection and downloading at www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: [Contact Name to be Inserted], Office
of Native American Programs, Office of Public and Indian Housing,
Department of Housing and Urban Development, 451 7th Street SW., Room
5206, Washington, DC 20410-8000; telephone number 202-708-2333 (this is
not a toll-free number). Persons with hearing or speech impairments may
access this number through TTY by calling the toll-free Federal Relay
Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On February 3, 2012, HUD published in the Federal Register, at 77
FR 5662, a final rule titled ``Equal Access to Housing in HUD Programs
Regardless of Sexual Orientation or Gender Identity'' (the Equal Access
Rule) in order to address evidence that lesbian, gay, bisexual, and
transgender (LGBT) individuals and families do not have equal access to
housing, and to promote the federal goal of providing decent housing
and a suitable living environment for all.\1\ The Equal Access Rule
requires that housing assisted or insured by HUD be made available to
individuals and families without regard to actual or perceived sexual
orientation, gender identity, or marital status. Additionally, the rule
prohibits owners and administrators of HUD-assisted or HUD-insured
housing, approved lenders in an FHA mortgage
[[Page 28038]]
insurance program, and any other recipients or subrecipients of HUD
funds from inquiring about sexual orientation or gender identity to
determine eligibility for HUD-assisted or HUD-insured housing. The
prohibition on inquiries regarding sexual orientation or gender
identity does not prohibit individuals from voluntarily self-
identifying sexual orientation or gender identity, and it provides a
limited exception for lawful inquiries of an applicant's or occupant's
sex where the housing provided or to be provided is temporary,
emergency shelter with shared sleeping areas or bathrooms, or to
determine the number of bedrooms to which a household may be entitled
These protections are now codified at 24 CFR 5.105(a)(2). The Equal
Access Rule also provides definitions for the terms sexual orientation
and gender identity, and revises the definition for the term family at
Sec. 5.403, which applies broadly unless otherwise provided in the
regulations for a specific HUD program. In addition, the Equal Access
Rule made revisions to specific HUD programs. See 24 CFR part 200--
Introduction to FHA Programs, revisions to sections defining family,
determining income adequacy, and applying the definition of family; 24
CFR part 570--Community Development Block Grants, revisions to the
section defining family and household; 24 CFR part 574--Housing
Opportunities for Persons with AIDS, revision to the section defining
family; 24 CFR part 891--Supportive Housing For the Elderly and Persons
with Disabilities, revision to the definition of family; and 24 CFR
part 892--Section 8 Tenant-Based Assistance: Housing Choice Voucher
Program, revisions to the sections defining family, eligibility, and
targeting.
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\1\ See Section 2 of the Housing Act of 1949 at 42 U.S.C. 1441
(Congressional Declaration of National Housing Policy).
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In publishing the Equal Access Rule, HUD noted that establishment
of the equal access policy in HUD's Native American programs would be
undertaken by separate rulemaking. (See 77 FR 5662, at footnote 3.)
Since implementing the Equal Access Rule, it has been HUD's intention
to apply the same non-discrimination requirements to HUD's Native
American and Native Hawaiian programs, after undergoing tribal
consultation to solicit feedback on this proposal.
Since the publication of the Equal Access Rule, the Federal
Government has continued to broaden protections for LGBT individuals
and families where Federal funding is involved. For example, the
Violence Against Women Reauthorization Act of 2013 (VAWA) includes a
provision that prohibits discrimination based on gender identity and
sexual orientation by recipients of VAWA funds or assistance
administered by the U.S. Department of Justice's Office on Violence
Against Women. Additionally, on July 21, 2014, President Obama signed
Executive Order 13672, titled, ``Further Amendments to Executive Order
11478, Equal Employment Opportunity in the Federal Government, and
Executive Order 11246, Equal Employment Opportunity,'' which prohibits
the Federal Government and Federal contractors from discriminating on
the basis of sexual orientation or gender identity.\2\
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\2\ See http://www.gpo.gov/fdsys/pkg/FR-2014-07-23/pdf/2014-17522.pdf.
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As discussed in the preamble to the January 24, 2011, proposed
Equal Access Rule, at 76 FR 4194, and in the preamble to the final
Equal Access Rule, the Federal government has a goal of providing
everyone in the United States with a decent and suitable place to live.
In furtherance of this, HUD has a responsibility to ensure that all who
are otherwise eligible to participate in HUD programs will not be
excluded based on sexual orientation, gender identity, or marital
status, which are irrelevant to eligibility for or participation in
those programs. By applying the core protections of the Equal Access
Rule to HUD's Native American and Native Hawaiian programs, HUD will
conform with its own precedent of equal access, as well as other
Federal precedent, to ensure that Federal funds are not used to exclude
persons from Federally-assisted programs because of sexual orientation,
gender identity, or marital status. Applying the Equal Access Rule to
HUD's Native American and Native Hawaiian programs will also ensure
consistency where there is an overlap between HUD's Native American and
Native Hawaiian programs and other HUD programs, which are already
subject to the requirements in the Equal Access Rule.
II. This Proposed Rule
With tribal consultation completed, as explained below in Section
III, HUD is proposing to amend regulations for its Native American and
Native Hawaiian programs so that they conform to the Equal Access Rule.
The regulations would require that access be provided without regard to
actual or perceived sexual orientation, gender identity, or marital
status in housing assisted or insured under these programs. The
proposed rule would add the equal access to HUD-assisted or insured
housing requirements in 24 CFR 5.105(a)(2) to the Native American and
Native Hawaiian programs identified below. HUD's rule at 24 CFR
5.105(a)(2) incorporates the definitions of ``sexual orientation'' and
``gender identity'' provided in Sec. 5.100, and these definitions will
apply to the Native American and Native Hawaiian programs. This
proposed rule would not change the definition of ``family'' for Native
American and Native Hawaiian programs. At the final rule stage, HUD
intends to make conforming amendments to Sec. 5.105(a)(2) to make
explicit that the requirements in Sec. 5.105(a)(2) apply to housing
with loans guaranteed or insured under one of HUD's Native American or
Native Hawaiian housing programs and not only the FHA mortgage
insurance program.
Specifically, this proposed rule would amend HUD's regulations for
Native American Housing Activities, at 24 CFR part 1000; Community
Development Block Grants for Indian Tribes and Alaska Native Villages,
at 24 CFR part 1003; the Section 184 Indian Home Loan Guarantee
Program, at 24 CFR part 1005; the Native Hawaiian Housing Block Grant
Program, at 24 CFR part 1006; and Section 184A Loan Guarantees For
Native Hawaiian Housing, at 24 CFR part 1007 to incorporate the Sec.
5.105(a)(2) requirements.
On November 20, 2015, HUD published in the Federal Register, at 80
FR 72642, a proposed rule titled ``Equal Access in Accordance with an
Individual's Gender Identity in Community Planning and Development
Programs'' (the CPD Equal Access Rule), which would amend certain
provisions of Sec. 5.105(a)(2). While the CPD Equal Access Rule would
not amend the Equal Access Rule's requirement that access be provided
without regard to actual or perceived sexual orientation, gender
identity, or marital status in HUD-assisted or HUD-insured housing, the
CPD Equal Access Rule is proposing changes to 24 CFR 5.105(a)(2) and to
the definition of ``gender identity'' in 24 CFR 5.100, which this rule
is seeking to adopt for Native American and Native Hawaiian programs.
If the CPD Equal Access Rule and this rule both become final, the
changes proposed in the CPD Equal Access Rule would apply to the Native
American and Native Hawaiian programs.
Specifically, the proposed rule seeks to remove the prohibition of
inquiries at Sec. 5.105(a)(2)(ii), which HUD believes may hinder a
provider from making an appropriate placement decision with regard to
transgender individuals and other persons who do not identify with the
sex they were assigned at birth. For this reason, the CPD Equal Access
Rule
[[Page 28039]]
proposes to remove the prohibition of inquiries. It is not HUD's
intent, however, to now permit recipients or subrecipients to ask
questions in order to seek information that could be used for
discriminatory purposes. The CPD Equal Access Rule is also proposing to
amend the definition of gender identity in Sec. 5.100, which currently
provides that ``Gender identity means actual or perceived gender-
related characteristics.'' The new definition would more clearly
reflect the difference between actual and perceived gender identity.
The definition of gender identity would now read as follows: ``Gender
identity means the gender with which a person identifies, regardless of
the sex assigned to that person at birth. Perceived gender identity
means the gender with which a person is perceived to identify based on
that person's appearance, behavior, expression, other gender-related
characteristics, or sex assigned to the individual at birth.''
III. Tribal Consultation
HUD's policy is to consult with Indian tribes early in the
rulemaking process on matters that have tribal implications.
Accordingly, on January 28, 2015, HUD sent letters to Tribal leaders
informing them of the nature of the forthcoming rule and soliciting
comments. The deadline for comments under this informal consultation
was February 27, 2015. HUD received one response to the consultation
letter from a tribally designated housing entity, which said it opposed
the proposed rule.
HUD received a second response on behalf of a housing development
and management organization that states that section 106(b)(2)(A) of
the Native American Housing Assistance and Self-Determination Act of
1996 (NAHASDA) (25 U.S.C. 4166(b)(2)(A)) requires HUD to use negotiated
rulemaking in order to amend NAHASDA regulations.. The letter also
stated that the rule should not prohibit tribes from considering
marital status in making eligibility determinations for housing
assisted or insured by HUD because tribes have authority to govern
domestic relations of their members. This letter also asked for more
specificity on the rule and more ways to participate in the
consultation process. The requirement to undertake negotiated
rulemaking pertains to regulations that implement NAHASDA statutory
requirements. This rule pertains to nondiscrimination requirements and
does not pertain to regulations that implement NAHASDA statutory
requirements.
The entities that submitted comments in response to the
consultation letter, and all other tribes and interested parties now
have the opportunity to provide further comments on this proposed rule,
and HUD welcomes such comments.
IV. Findings and Certifications
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This proposed rule does not impose any new costs, or modify existing
costs, applicable to HUD grantees. Rather, the purpose of this proposed
rule is to ensure equal access to HUD's Native American and Native
Hawaiian programs, regardless of sexual orientation or gender identity.
Accordingly, the undersigned certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
Environmental Impact
This proposed rule sets forth nondiscrimination standards.
Accordingly, under 24 CFR 50.19(c)(3), this proposed rule is
categorically excluded from environmental review under the National
Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either: (i) Imposes substantial direct compliance costs on state and
local governments and is not required by statute, or (ii) preempts
state law, unless the agency meets the consultation and funding
requirements of section 6 of the Executive Order. This proposed rule
would not have federalism implications and would not impose substantial
direct compliance costs on state and local governments or preempt state
law within the meaning of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments, and on the private sector. This proposed rule would
not impose any federal mandates on any state, local, or tribal
governments, or on the private sector, within the meaning of the UMRA.
List of Subjects
24 CFR Part 1000
Aged, Community development block grants, Grant programs--housing
and community development, Grant programs--Indians, Indians,
Individuals with disabilities, Public housing, Reporting and
recordkeeping requirements.
24 CFR Part 1003
Alaska, Community development block grants, Grant programs--housing
and community development, Grant programs--Indians, Indians, Reporting
and recordkeeping requirements.
24 CFR Part 1005
Indians, Loan programs--Indians, Reporting and recordkeeping
requirements.
24 CFR Part 1006
Community development block grants, Grant programs--housing and
community development, Grant programs--Indians, Hawaiian Natives, Low
and moderate income housing, Reporting and recordkeeping requirements.
24 CFR Part 1007
Hawaiian Natives, Loan programs--housing and community development,
Loan programs--Indians, Reporting and recordkeeping requirements.
Accordingly, for the reasons stated in the preamble, HUD proposes
to amend 24 CFR parts 1000, 1003, 1005, 1006, and 1007, as follows:
PART 1000--NATIVE AMERICAN HOUSING ACTIVITIES
0
1. The authority citation for 24 CFR part 1000 continues to read as
follows:
Authority: 25 U.S.C. 4101 et seq.; 42 U.S.C. 3535(d).
0
2. In Sec. 1000.12, add paragraph (e) to read as follows:
Sec. 1000.12 What nondiscrimination requirements are applicable?
* * * * *
(e) The equal access to HUD-assisted or insured housing
requirements in 24 CFR 5.105(a)(2).
PART 1003--COMMUNITY DEVELOPMENT BLOCK GRANTS FOR INDIAN TRIBES AND
ALASKA NATIVE VILLAGES
0
3. The authority citation for 24 CFR part 1003 continues to read as
follows:
[[Page 28040]]
Authority: 42 U.S.C. 3535(d) and 5301 et seq.
0
4. In Sec. 1003.601, add paragraph (c) to read as follows:
Sec. 1003.601 Nondiscrimination.
* * * * *
(c) A grantee shall comply with the equal access to HUD-assisted or
insured housing requirements in 24 CFR 5.105(a)(2).
PART 1005--LOAN GUARANTEES FOR INDIAN HOUSING
0
5. The authority citation for 24 CFR part 1005 continues to read as
follows:
Authority: 12 U.S.C. 1715z-13a; 15 U.S.C. 1639c; 42 U.S.C.
3535(d).
0
6. Add Sec. 1005.115 to read as follows:
Sec. 1005.115 Equal Access.
The equal access to HUD-assisted or insured housing requirements in
24 CFR 5.105(a)(2) apply to this part.
PART 1006--NATIVE HAWAIIAN HOUSING BLOCK GRANT PROGRAM
0
7. The authority citation for 24 CFR part 1006 continues to read as
follows:
Authority: 25 U.S.C. 4221 et seq.; 42 U.S.C. 3535(d).
0
8. Amend Sec. 1006.355 to read as follows:
0
a. The undesignated paragraph is revised and designated as paragraph
(a);
0
b. Redesignate paragraphs (a), (b), and (c) as paragraphs (a)(1),
(a)(2), and (a)(3);
0
c. Redesignate paragraphs (c)(1) and (c)(2) as paragraphs (a)(3)(i) and
(a)(3)(ii); and
0
d. Add paragraph (a)(4)
Sec. 1006.355 Nondiscrimination requirements.
(a) Program eligibility under the Act and this part may be
restricted to Native Hawaiians. Subject to the preceding sentence, no
person may be discriminated against on the basis of race, color,
national origin, religion, sex, familial status, or disability, or
excluded from program eligibility because of actual or perceived sexual
orientation, gender identity, or marital status. The following
nondiscrimination requirements are applicable to the use of NHHBG
funds:
* * * * *
(4) The equal access to HUD-assisted or insured housing
requirements in 24 CFR 5.105(a)(2).
(b) [RESERVED]
PART 1007--SECTION 184A LOAN GUARANTEES FOR NATIVE HAWAIIAN HOUSING
0
9. The authority citation for 24 CFR part 1007 continues to read as
follows:
Authority: 12 U.S.C. 1715z-13b; 15 U.S.C. 1639c; 42 U.S.C.
3535(d).
0
10. Amend Sec. 1007.45 to revise the heading, designate the
undesignated paragraph as paragraph (a), and add paragraph (b) to read
as follows:
Sec. 1007.45 Nondiscrimination
(a) * * *
(b) The equal access to HUD-assisted or insured housing
requirements in 24 CFR 5.105(a)(2) apply to this part.
Dated: March 30, 2016.
Lourdes Castro Ramirez,
Principal Deputy Assistant Secretary for Public and Indian Housing.
[FR Doc. 2016-10753 Filed 5-6-16; 8:45 am]
BILLING CODE 4210-67-P